Beyond the International Criminal Court

In the past week, three African states (South Africa, Burundi, and Gambia) have announced their withdrawals from the International Criminal Court. Amnesty International describes these withdrawals as a “march away from justice,” and “drastic blow to countless victims globally.” Rather than simply decrying these decisions, perhaps it is time to think more carefully about what we mean by “justice,” and about the utility of the ICC as a tool to achieve it.

Critics have accused the Court of pursuing only the weakest players in the geopolitical spectrum, in part the consequence of the most powerful refusing to join. Relatedly, they point to the power politics at play in ongoing cases that raise doubts about its supposed impartiality and independence.

Less discussed are the challenges and contradictions raised by the Court’s lack of enforcement powers: namely, who it relies upon to apprehend suspects, and what accountability mechanisms, if any, are in place to prevent further bloodshed in the name of enforcing “justice.”

From the protection of victims and witnesses to the apprehension of suspects, the ICC’s operational reliance on powerful states ensures that individuals from those states will largely escape scrutiny, and that the Court’s decisions are often far removed from the very people it was designed to protect.

Perhaps the most dangerous implication of this dependency on “cooperating” states is the potential for manipulation in the service of entirely different projects. Some analysts draw a parallel between the ICC and the “responsibility to protect” (R2P) doctrine, noting that while both projects claim to challenge impunity in the name of peace and justice, the reliance on powerful states to implement their agendas can turn victims into proxies for military intervention. The kind of justice that the ICC is in the business of “delivering” is therefore also in question.

The Court’s cases in Uganda, Sudan, and Kenya have variously encountered these challenges and criticisms. The complexity of each case warrants scrutiny, and demands attention not only to the ICC’s relationship to structures of power but also to those of the individuals it seeks to hold accountable, many of whom may use their positions of power to escape trial.

A 2010 Wikileaks file revealed the former ICC Prosecutor’s proclivity to use geo-politics to his advantage: in an effort to win China’s support for the case against Omar Al Bashir, Prosecutor Moreno Ocampo suggested that the Americans reassure China that its access to oil would not be jeopardized if Bashir were “removed” from power.

Ultimately, the Prosecutor seemed more concerned with serving the interests of external players than with the Sudanese themselves, as many accused him of disregarding the indictment’s potential impact on domestic and regional peace-making efforts.

Is “justice” as defined by the ICC ultimately a source of meaningful redress? Does it sufficiently shed light on the broader structures of political and economic oppression?

The ICC and its more prominent supporters, much like proponents of the “responsibility to protect,” generally lead us to believe that the Court is the answer to impunity, as though the law were divorced from politics, and as though “peace” and “justice” can simply be delivered at the push of a button.

Yet the ICC is an institution located within a larger architecture of power that endows some crimes and some victims with legitimacy, and not others. At the same time, its “responsibility to punish” is subject to political manipulation that allows for further exception and impunity, as observed in the case of the Security Council referral on Libya.

The extent to which the Court is, or ever can be, a counter-hegemonic justice project therefore requires careful consideration — demanding questions rather than answers. Rather than presume to know about the priorities of “victims,” perhaps it is time to engage with activists on the African continent and beyond about the possibilities and limitations of the ICC to contribute to our collective struggles, and to grapple critically with how we conceive of justice itself.

You make some excellent points, but: “The extent to which the Court is, or ever can be, a counter-hegemonic justice project…”

Was that ever really the goal?

The concept of the ICC begins with the role of the Security Council as a referring body. The P5 each retain a veto. And, of course, the P5 are also the largest arms dealers in the world, which has proven to be a crucial part of the ability of various actors to make war.

But can the ICC ever really be expected to run counter to the current international status quo when its very basis for existence relies on it? Both legally and from a funding point of view?

I’d argue that the ICC represents a small, but important, incremental step in the search for international justice. The Kenyatta/Odinga case comes to mind. I have no idea if they were guilty or not, but this was a case that was brought to the Court specifically because a country with relatively weak institutions didn’t believe that it would be able to successfully prosecute a fair and effective case against them. And so Kenya itself, not some hegemonic power, referred the case itself.

Similarly, Charles Taylor. Could anyone really imagine he’d be able to get a fair trial in SL or Liberia?

“The ICC and its more prominent supporters… generally lead us to believe that the Court is the answer to impunity”

Unfortunately, I find that boosters tend to oversell their cases. The Court itself isn’t an answer. It’s a step. Arguably even little more than an experiment in international justice.

Aren’t all of our bodies of international law still largely experiments? The ICTY was far from perfect. Ditto the ICTR. But it strikes me that both were worthwhile.

Is anyone here able to discuss why the ICC has never investigated Apartheid / Colonialist war crimes, such as Apartheid South Africas attack against the Cassinga refugee camp or mass executions of prisoners of war and the deliberate spread of Anthrax by Selous Scouts in former Rhodesia? From a purely legalistic standpoint: why has the ICC been reluctant to tackle these issues so far?

I appreciate what CapnVan says here about the ICC being a ‘step’, or even an experiment in international justice. If we could see the ICC in this more tentative way, it would perhaps allow for a lot more debate and dialogue around the way it is structured and the way it operates. At the moment, it feels like there is very little room to challenge the way things are done, or the assumptions and ideologies that underlie the ICC.